On behalf of the petitioner-appellant, the cause was
submitted on the briefs of Michael J. Watton of Watton Law Group of Milwaukee.

Respondent

ATTORNEYS:

On behalf of the respondent-respondent, the cause was
submitted on the brief of Grant F.
Langley, city attorney and Melanie R. Swank, assistant city attorney of Milwaukee.

2007 WI APP 267

COURT OF APPEALS

DECISION

DATED AND FILED

November 06, 2007

David R. Schanker

Clerk of Court of Appeals

NOTICE

This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2006AP3092

Cir. Ct.
No.2006CV9101

STATE OF WISCONSIN

IN COURT OF
APPEALS

Michael J. Watton, d/b/a Watton Law Group,

Petitioner-Appellant,

v.

Nanette H. Hegerty, Chief of Police,

and as official custodian of records

for the City of Milwaukee
Police

Department,

Respondent-Respondent.

APPEAL
from an order of the circuit court for MilwaukeeCounty:CLARE L. FIORENZA, Judge.Affirmed in part; reversed in part; and
cause remanded with directions.

Before Wedemeyer, Fine and Kessler, JJ.

¶1KESSLER, J. Michael J. Watton appeals from
an order denying a writ of mandamus which sought to compel Milwaukee Police
Chief Nannette H. Hegerty to produce certain emergency detention reports
prepared by Milwaukee
police officers pursuant to Wis. Stat.
§§ 51.15(1) and (4) (2005-06),[1]
and retained by the Milwaukee Police Department (MPD).The detention reports concerned conduct by
Sidney Kente Gray.Watton requested the
records from the MPD under Wis. Stat.
§19.35, the open records statute.[2]The trial court concluded that the MPD‑retained
emergency detention reports were confidential under Wis. Stat. § 51.30(4) as “treatment records,” were
therefore exempt from disclosure under the open records statute, and dismissed
the petition.Because we conclude that
the trial court did not correctly construe the relevant statutes, we reverse.

BACKGROUND

¶2Watton is an attorney who represents the estate and family of
Frank Moore II, a person shot and killed by Gray.Watton asserts, and the City does not dispute
in these proceedings, that the killing occurred the following day, after Gray
was alleged to be mistakenly released from custody.Watton asserts that the release was the
result of negligence by the MPD.

¶3Pursuant to Wis. Stat.
§ 19.35, Watton filed a public records request with the MPD that, as
material to this appeal, requested the following:

All police records which include a signed statement of
emergency detention of Mr. Gray, including, but not limited to the following
specific detentions:

a.June 13 or 14, 2006 (the signed statement of emergency
detention pursuant to Wis. Stat. 51.15(4)(a) with all allegations and
observations).

b.A January, 2006 signed statement of emergency
detention, as described above.

¶4The request identified Gray by various aliases and
addresses.It is not disputed that Gray
is the person about whom the records were sought and to whom the records
disputed here pertain.Watton was
promptly presented with a one-page form denial, which made no reference to
Watton’s specific request, and which read in its entirety:

MILWAUKEE
POLICE DEPARTMENT REASONS FOR DELETION

#19The
information that has been deleted relates to a medical or physical condition
which, if revealed, may constitute an invasion of the right of privacy of the
individual involved and/or immediate survivors.Wis.
Stat. §§ 51.30(4), 51.34, 895.50.

(Format,
underlining and capitalization as in original.)

¶5On September 19, 2006, Watton filed a petition for a writ of
mandamus to compel Hegerty to provide the requested documents.In support of his petition, Watton attached
various documents he apparently obtained from public sources.The record reflects Watton’s requests that
Gray’s defense attorney authorize Gray to consent to release of these
documents, and that this request was ignored.A six-page evaluation of Gray’s competency, prepared by Deborah L.
Collins, ABPP, Psy.D., Assistant Director of the Wisconsin Forensic Unit, is
included in Watton’s petition.The
evaluation was done for use in Gray’s criminal proceeding.[3]The evaluation discloses Gray’s status as a
mental health patient at the Milwaukee County Mental Health Complex on nine
occasions between March 2005 and June 2006.Wisconsin Circuit Court Access (CCAP) records indicate the evaluation
was done at the request of Gray’s attorney.The evaluation report[4]
is a public record, filed with the court presiding over the criminal
proceedings.On October 20, 2006, CCAP
records indicate Gray entered a plea of not guilty by reason of mental disease
or defect to the criminal charges.

¶6Although the trial court did not grant the writ and order a
response, the court did set the matter for a hearing on November 20, 2006.The City produced the requested records
(excluding the retained emergency detention reports) along with its formal
written response, on October 19, 2006, forty-one days after the date of the
original request.Wisconsin Stat. § 19.35(4)(a) of
the open records statute requires production of the records “as soon as
practicable and without delay.”The
trial court found that because the request identified multiple aliases, two
birthdates, and several addresses for Gray, the time taken for response was not
unreasonable.

¶7At the hearing, the City responded to the petition by
admitting that the MPD had copies of three emergency detention reports which
involved Gray within the requested time period.The City asserted that it was not required by Wis. Stat. § 19.35 to produce those documents because
they were prepared pursuant to Wis.
Stat. § 51.15(4)(a), and therefore were confidential under
§ 51.30(4) as “treatment records.”The City also asserted that the records were protected from disclosure
by Gray’s right of privacy as described in Wis.
Stat. § 995.50.[5]Finally, the City argued that Watton was not
entitled to mandamus to compel production of the MPD documents because he had
an alternative adequate remedy at law, i.e., § 51.30(3)(c) or
(4)(b)(4) allowed him to ask another court to order the treatment facility to
release its records.

¶8The parties agreed that the records in dispute were created
pursuant to Wis. Stat. §
51.15(4), and that a copy of each document was kept by the MPD.Watton made it clear that he was requesting
the document retained by the MPD, not the one delivered to the treatment
facility.All parties and the trial
court assumed that the two documents are identical on their face.

¶9The trial court read various statutes into the record.These included:Wis.
Stat. § 51.15(4), which describes the substance required in, and
procedural posture of, the emergency detention report; Wis. Stat. § 51.30(1)(am), which defines “registration
records”; § 51.30(1)(b), which defines “treatment records”; and §
51.30(4), which addresses access to those and other records.The trial court made the following finding as
to the character of the document retained by the MPD:

I understand that the
department gave the original statement of detention to the detention facility
entity when the subject was delivered there, and a copy was retained by the
department.I’m not exactly sure of the
purpose of the department in retaining a copy.I believe I was told at the hearing that a copy was kept to make sure
that the department wasn’t charged for an ambulance or something like that.…

¶10The trial court concluded that “it would be an absurd result if
[Watton] could obtain a copy of statements of detention because the department
kept a copy.…I don’t think the statutes
provide for that occurring.”

Statute 19.35(1) Right to Inspection.And (a) provides except as otherwise provided
by law, any requester has a right to inspect any record.There is a statute that does not allow these
records to be disclosed.That’s Section
51.30(4).The petitioner does not have a
clear right to the requested records, and there is no positive plain duty for
the police department to provide those records to him.

¶12The trial court dismissed the petition for the writ on the
merits.This appeal followed.

¶15Wisconsin’s
open records statute[6]
requires disclosure of documents maintained by government entities unless
disclosure is otherwise prohibited by statute or common law or there is a
strong public policy against disclosure. SeeWoznicki v. Erickson,202 Wis.
2d 178, 181, 549 N.W.2d 699 (1996).When
provisions of the Wisconsin privacy statute, Wis. Stat. § 995.50, are also
implicated, our supreme court has explained that a balancing test must be
applied to the facts in light of the competing policies, and blanket exceptions
may not be applied unless provided by common law or statute.Woznicki, 202 Wis. 2d at 183.Disclosure of public records also may be
limited by specific state or federal statute.[7]The parties rely on no federal statute to
justify withholding the emergency detention reports.The parties have cited no common law basis
justifying the refusal to produce these detention reports.We turn, therefore, to Wisconsin
statutes to determine whether those sources prohibit disclosure of the
emergency detention reports in the possession of the MPD.

B.Mental
health treatment statutes

1.Wisconsin Stat. ch. 51

¶16Wisconsin Stat.
ch. 51 establishes legislative policy “to assure the provision of a full range
of treatment and rehabilitation services in the state for all mental disorders
and developmental disabilities and for mental illness, alcoholism and other
drug abuse.”Wis. Stat. § 51.001(1).To accomplish these policies, Wis.
Stat. § 51.15 describes an emergency process for taking a person into
custody for a voluntary or involuntary evaluation and possible civil
commitment.The process begins with
§ 51.15(1)(a), which authorizes a law enforcement officer, or other person
authorized to take a juvenile into custody (hereafter referred to collectively
as “the officer”), to take a person into custody, and deliver the person to a
treatment facility, if the officer:

has cause to believe that the individual is mentally
ill, is drug dependent, or is developmentally disabled, and that the individual
evidences any of the following:

1. A substantial
probability of physical harm to himself or herself as manifested by evidence of
recent threats of or attempts at suicide or serious bodily harm.

2. A substantial
probability of physical harm to other persons as manifested by evidence of
recent homicidal or other violent behavior on his or her part, or by evidence
that others are placed in reasonable fear of violent behavior and serious
physical harm to them, as evidenced by a recent overt act, attempt or threat to
do serious physical harm on his or her part.

3. A substantial
probability of physical impairment or injury to himself or herself due to
impaired judgment, as manifested by evidence of a recent act or omission….

¶17Wisconsin Stat. §
51.15 directs the officer to prepare a report of the conduct observed by the
officer and the third-party information obtained by the officer which caused
the officer to take the person into emergency detention.In Milwaukee County, under § 51.15(4)(a) and
(b),[8]
the report is delivered to the treatment facility; it is not filed with the
court until the director of the treatment facility decides that the person who
is the subject of the report should be the subject of a civil commitment.By contrast, in all other counties in
Wisconsin, under § 51.15(5),[9]
the officer making the emergency detention not only delivers the report to the
treatment facility, but also formally begins the commitment procedure by filing
the report directly with the court.

¶18The requirements for the substance of the report, which apply
equally to MilwaukeeCounty
and the rest of the State,[10]
are:

[T]he … officer … shall sign
a statement of emergency detention which shall provide detailed specific
information concerning the recent overt act, attempt, or threat to act or
omission on which the belief under sub. (1) is based and the names of the
persons observing or reporting the recent overt act, attempt, or threat to act
or omission.The … officer … is not
required to designate in the statement whether the subject individual is
mentally ill, developmentally disabled, or drug dependent, but shall allege
that he or she has cause to believe that the individual evidences one or more
of these conditions.…

Wis. Stat.
§ 51.15(4)(a) & (5) (emphasis added).

¶19Wisconsin Stat.
ch. 51 defines various types of records, and establishes a method to determine
whether they are confidential and to whom they may be released.We first determine whether the detention
report retained by the MPD is covered by any of the statutory definitions.

(am) “Registration
records” include all the records of the department, county
departments under s. 51.42 or 51.437,[11]
treatment facilities, and other persons providing services to the
department, county departments, or treatment facilities, that are created
in the course of providing services to individuals for mental illness,
developmental disabilities, alcoholism, or drug dependence.

(b) “Treatment
records” include the registration and all other records that are created
in the course of providing services to individuals for mental illness,
developmental disabilities, alcoholism, or drug dependence and that are
maintained by the department, by county departments under s. 51.42 or 51.437
and their staffs, and by treatment facilities.Treatment records do not include notes or
records maintained for personal use by an individual providing treatment
services for the department, a county department under s. 51.42 or 51.437, or a
treatment facility, if the notes or records are not available to others.

(Emphasis
and footnote added.)

¶20Although the list of records defined is considerable, the
detention reports specifically described in Wis.
Stat. § 51.15 are not mentioned in the definition of either registration
record or treatment record specifically or by incorporation by numerical reference.The City argues that the detention report is
a “registration record” and asserts that because the MPD transports people to
treatment facilities it is part of “other persons providing services to the
department” as described in Wis. Stat.
§ 51.30(1)(am).The City does not
contend that the MPD provides “treatment” as defined in Wis. Stat. § 51.01(17).

¶21Wisconsin Stat. § 51.15
requires that the emergency detention report include “detailed specific
information concerning the recent overt act, attempt, or threat to act or
omission on which the belief under [§ 51.15(1)] is based and the names of
the persons observing or reporting the recent overt act, attempt, or threat to
act or omission,” including observations by the officer, and information from
third parties.Wis. Stat. § 51.15(4)(a) and (1)(b), respectively.The statutes do not require that the
emergency detention report disclose whether the person is a patient in any
facility or that it include the type of information that would normally be
disclosed to a treatment facility when a person is actually admitted for
treatment, such as whether there is health insurance, prior hospitalizations,
medical history and so forth.See
§ 51.15(4)-(5).

¶22“Registration records,” as defined in Wis. Stat. § 51.30(1)(am), include all records “that are
created in the course of providing services to individuals for mental illness,
developmental disabilities.…”However, it
is not identification of a person who may have behaved dangerously, but
identification of the person as a patient that is protected by the
confidentiality accorded by Wis. Stat.
§ 51.30(1)(am) to “registration records.”See Daniel A. v. Walter H., 195 Wis. 2d 971, 989-90,
537 N.W.2d 103 (Ct. App. 1995) (“Since every patient is presumably identified
in a record showing that he or she has received such services, information
which identifies a person as a patient is subject to the privilege.”)
(emphasis added).As noted
above, see ¶5 supra, Gray’s status as a mental health patient
became a matter of public record in his criminal case because it was disclosed
in the evaluation of his competency to proceed to trial.

¶23Because the MPD is resisting disclosure under Wis. Stat. § 19.35, it has the burden
of showing that the documents withheld fall within a statutory or common law
exception to disclosure.Newspapers,
Inc. v. Breier, 89 Wis.
2d 417, 427, 279 N.W.2d 179 (1979).The
MPD provided no copy of the disputed documents in this record.The MPD has thus failed to establish that the
content of these documents identify Gray as a patient, and thus qualify
as “registration records” under Wis.
Stat. § 51.30(1)(am) and Daniel A.Accordingly, we conclude that the record in
this case does not establish that the emergency detention reports in the
possession of the MPD meet the definition of “registration record” as that term
is defined by statute.See
§ 51.30(1)(am) and Daniel A., 195 Wis. 2d at 989-90.

¶24Additionally, to be exempt from disclosure, a document that is
a “registration record” must also be a “treatment record” under the
statute.SeeWis. Stat. § 51.30(4).Were we to consider the emergency detention
report a “registration record,” it does not qualify under the statutory
definition of “treatment records.”Only those
“registration records” “which are maintained by the department, by county
departments under s. 51.42 or 51.437 and their staffs, and by treatment
facilities” are “treatment records” under § 51.30(1)(b).Based upon the clear language of
§ 51.30(1)(b), the record retained by the MPD is not a document
“maintained” by the entities listed in the statute.Rather, “the department” referred to in Wis. Stat. ch. 51 is the State
Department of Health and Family Services.SeeWis. Stat. § 46.011(1).Section 51.42 establishes county
departments responsible for community programs for the mentally ill, chemically
dependent and developmentally disabled with a governing board to organize and
manage treatment programs.[12]The record does not indicate that the MPD is
a part of the § 51.42 board, or that it contracts with that board to
provide services.Finally, Wis. Stat. § 51.437 establishes a
county department with expanded responsibility for services to persons with
developmental disabilities.[13]The record here is devoid of any evidence
that the MPD is either a part of the Wis.
Stat. § 51.437 department or that it contracts with that
department.There is also no claim that
the MPD is a “treatment facility”[14]
as defined under the applicable statutes.Accordingly, even if the emergency detention reports arguably constitute
“registration records,” as argued by the City, they are not “treatment records”
exempt from disclosure under§ 51.30.

2.Confidentiality of records under the Physician-Patient
Privilege—Wis. Stat. § 905.04

¶25The legislature has also recognized that the confidentiality of
mental health treatment records is fundamentally grounded on the
physician-patient privilege, as reflected in the language of Wis. Stat. § 51.30(4)(a), when it
excluded from confidentiality matters “otherwise provided” by Wis. Stat. § 905.04.[15]SeeBilly Jo W. v. Metro,
182 Wis. 2d 616, 643, 514 N.W.2d 707 (1994) (“When
he pleaded not guilty by reason of mental disease or defect, he waived the
physician-patient confidentiality that ordinarily protects mental health
records”) (relying on State v. Taylor, 142 Wis. 2d 36, 41, 417 N.W.2d 192 (Ct.
App. 1987)).[16]Section 905.04(4) provides that the basic
grant of confidentiality to communications between a patient and various
physical and mental health care professionals is waived under certain
circumstances.One of those
circumstances is when “the patient relies upon the condition as an element of
the patient’s claim or defense.”Section 905.04(4)(c).

¶26Gray put his mental condition in issue in a public forum twice
before the trial court here refused to order the release of the MPD detention
reports.Gray first put his mental
health in issue by requesting and obtaining a competency evaluation, and again
later by entering a plea of not guilty by reason of mental disease or defect.[17]As our supreme court in Taylorexplained:

Taylor
lost his physician-patient privilege with respect to his past psychiatric
treatment records.Section 51.30(4)(a)
provides confidentiality to records that are privileged, but does not create a
cloak of confidentiality independent of the privilege itself.Once the privilege is removed the
confidentiality is also removed.Therefore, when Taylor
entered a plea of not guilty by reason of mental disease or defect, he lost his
physician-patient privilege by virtue of the provisions of sec.
905.04(4)(c).Once he lost the
privilege, he also lost confidentiality for his treatment records under sec. 51.30(4)(a).

Taylor, 142 Wis. 2d at 41.Similarly, Gray waived the confidentiality
both accorded by Wis. Stat. §
905.04 and as that statute is incorporated as an exception to the
confidentiality awarded by Wis. Stat.
§ 51.30(4)(a) when he put his mental health in issue.Accordingly, Gray’s public assertion that he
is mentally ill acts as a waiver of any privilege of confidentiality that may
have otherwise attached to these records and, therefore, nondisclosure of the
emergency detention reports is not required by this statute.

C.Privacy
statute—Wis. Stat. § 995.50

¶27The City next argues that disclosure of the detention reports
may be prohibited by Gray’s statutory right of privacy, Wis. Stat. § 995.50, which provides, in relevant part:

Right of privacy.

….

(2) In this
section, “invasion of privacy” means any of the following:

(a) Intrusion
upon the privacy of another of a nature highly offensive to a reasonable
person, in a place that a reasonable person would consider private
or in a manner which is actionable for trespass.

….

(c) Publicity given
to a matter concerning the private life of another, of a kind highly offensive
to a reasonable person, if the defendant has acted either unreasonably or
recklessly as to whether there was a legitimate public interest in the matter
involved, or with actual knowledge that none existed.It is not an invasion of privacy to
communicate any information available to the public as a matter of public
record.

(Emphasis
added.)

¶28The information included in the emergency detention reports is
essentially the conduct observed which led to an arrest.SeeWis.
Stat. § 51.15(4).Arrest
records are public records and “the legislature has determined that individuals
have no right of privacy in materials contained in public records that are open
to the public generally.”Newspapers,
Inc., 89 Wis.
2d at 432.The fact that the conduct
observed and reported may be bizarre or embarrassing, or dangerous to the
subject or others, does not avoid the statutory disclosure required to respond
to an open records request when that conduct results in an arrest.Seeid. at 439-40 (Where
arrest records are public, public policy interest weighs in favor of openness
and against “the amorphous, ill-defined interests that the public might have in
the protection of the reputations of persons who have been arrested.”).Also, the fact that a person is described as
behaving in a dangerous way that may lead observers to conclude that the
behavior is odd, idiosyncratic, bizarre or even crazy does not identify the
individual as a patient of any treatment facility entitled to the
non-disclosure privilege discussed in Daniel A.

¶29Additionally, one cannot reasonably argue that disclosure of
records that may relate to his mental condition would “be highly offensive to a
reasonable person” when Gray himself has made his mental condition a matter of
public record, and his status as a former mental health patient has thereby become
a matter of public record.A person
cannot reasonably require disclosure of his mental condition in one court and
resist disclosure in another.SeeWis. Stat. § 905.04(4).It follows that when Gray may not prevent
disclosure of records that may relate to his mental condition, a third party,
in this case the City, likewise may not resist disclosure on his behalf on
privacy grounds.

¶30Because there is no statute which clearly exempts the detention
reports in the possession of the MPD from public records law disclosure, Watton
is entitled to copies of those documents, unless a compelling public policy
reason weighs against the statutory right to obtain the documents.Other than the policies discussed above, the
parties have suggested no other public policy that weighs against disclosure of
these records maintained by the MPD.We
conclude, therefore, that Watton has a clear right to obtain copies of the MPD
documents.

II.Mandamus

¶31The open records statutes specifically authorize mandamus as a
remedy to compel disclosure.

(1) Mandamus.If an authority withholds a record or a part
of a record or delays granting access to a record or part of a record after a
written request for disclosure is made, the requester may pursue either, or
both, of the alternatives under pars. (a) and (b).

(a) The requester
may bring an action for mandamus asking a court to order release of the
record.The court may permit the parties
or their attorneys to have access to the requested record under restrictions or
protective orders as the court deems appropriate.

Wis. Stat. §
19.37(1)(a).

¶32“Mandamus is an extraordinary writ that may be used to compel a
public officer to perform a duty that he or she is legally bound to perform.” See State ex rel. Greer v. Stahowiak,
2005 WI App 219, ¶6, 287 Wis. 2d 795, 706 N.W.2d 161.In order for a writ of mandamus to be issued,
there must be a clear legal right, a positive and plain duty, substantial damages,
and no other adequate remedy at law. Pasko
v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d
1, 643 N.W.2d 72; see alsoGreer,
287 Wis. 2d
795, ¶6.The City argues that Watton has
satisfied none of these criteria.We
disagree.

¶33As we have explained above, Watton has a clear right to the
detention reports retained by the MPD.Under Wis. Stat. § 19.35,
Hegerty had a plain duty to produce documents in the possession of the MPD
which are not specifically exempted from disclosure by statute, common law or
public policy considerations that outweigh the policy of the open records
statutes.See State ex rel.
Journal/Sentinel, Inc. v. Arreola, 207 Wis. 2d 496, 509, 558 N.W.2d 670
(Ct. App. 1996) (“[P]ublic records shall be open to the public unless there is
a clear statutory exception, unless there exists a limitation under the common
law, or unless there is an overriding public interest in keeping the public
record confidential.”) (citation and internal quotation marks omitted).As discussed above, neither statute, common
law nor other public policy referred to by the parties in this appeal prevents
disclosure of the detention reports retained by the MPD.Watton is damaged by MPD’s failure to
disclose public information in the same manner that any member of the public,
or of the media, is damaged when the policy of open records is improperly
thwarted.

¶34The City argues that Watton has another adequate remedy (other
than forcing the MPD to produce the documents admittedly in its
possession—documents it considers “treatment records”) because he can ask
another court to order the treatment facility to release the treatment records
in its possession.The City’s argument
is premised upon its reliance that the records held by the MPD are “treatment
records” and, therefore, Wis. Stat. § 51.30(4)(b)[18]
applies.However, as we have seen, the
MPD records are not “treatment records” under those statutes, and those
statutes thus have no application to the mandamus proceeding.

¶35The open records statute specifically permits a mandamus action
to compel production of improperly withheld public records.[19]Watton followed the requirements of the
applicable statutes.He is entitled to
the records in the possession of the MPD that were improperly withheld.He has no other adequate remedy to obtain the
MPD records.Accordingly, we reverse and
remand to the trial court to enter an order directing Hegerty to produce the
requested detention reports in the possession of the MPD.

III.Time of production of requested records other than the
emergency detention records.

¶36Finally, Watton argues that the City failed to timely produce
the requested documents.For purposes of
the production of public records under Wis.
Stat. § 19.35(4)(a), the statutory language “as soon as practicable”
implies a reasonable time for response—otherwise the legislature would have
established a specific deadline.We
conclude that determining what is a reasonable time depends, at least in part,
upon the nature and scope of the request, and the staff and the other resources
reasonably available to process the request.SeeKalal, 271 Wis. 2d 633, ¶46 (We are to interpret
statutory language in the context within which it is used, “not in isolation
but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable
results.”).Whether the production was
accomplished “as soon as practicable” presents a mixed question of fact and law.
Here, it is undisputed that the
requested records were produced on October 19, 2006, forty-one days after
Watton’s September 8 request.The trial
court properly considered the scope of the request and the staff assigned by
the MPD to open records responses.The
record supports the trial court’s conclusion that the production complied with
the requirements of the statute.We
affirm that portion of the trial court’s decision.

By
the Court.—Order affirmed in part; reversed in part; and cause remanded with
directions.

[1] All
references to the Wisconsin Statutes are to the 2005-06 version unless
otherwise noted.

[2] The
arguments before this court involve only three MPD emergency detention reports
regarding Gray. The full request was for more than the emergency detention
reports, but the other documents were provided by the time of the trial court
hearing.

[4] Although
concluding that Gray was able to generally understand the proceedings and
assist in his own defense, this report disclosed

an estimated
nine episodes of care with the MHC
[Mental Health Complex] between March of 2005 and June of [2006].Three of those contacts involve inpatient
psychiatric hospitalizations, the most recent of which occurred between 06/13
and 06/20/06.In connection with that
hospitalization, the defendant received diagnoses of Schizophrenia,
Undifferentiated Type, and Cannabis Abuse.

(1)Right to inspection. (a) Except
as otherwise provided by law, any requester has a right to inspect any record.
Substantive common law principles construing the right to inspect, copy or
receive copies of records shall remain in effect. The exemptions to the
requirement of a governmental body to meet in open session under s. 19.85 are
indicative of public policy, but may be used as grounds for denying public
access to a record only if the authority or legal custodian under s. 19.33
makes a specific demonstration that there is a need to restrict public access
at the time that the request to inspect or copy the record is made.

(1)Application of other laws. Any
record which is specifically exempted from disclosure by state or federal law
or authorized to be exempted from disclosure by state law is exempt from
disclosure under s. 19.35 (1), except that any portion of that record which
contains public information is open to public inspection as provided in sub.
(6).

The law
enforcement officer or other person shall deliver, or cause to be delivered, the
statement to the detention facility upon the delivery of the individual to it.

(b) ….

If the
individual is detained, the treatment director or his or her designee may
supplement in writing the statement filed by the law enforcement officer or
other person, and shall designate whether the subject individual is believed to
be mentally ill, developmentally disabled or drug dependent, if no designation
was made by the law enforcement officer or other person.The director or designee may also include
other specific information concerning his or her belief that the individual
meets the standard for commitment.The
treatment director or designee shall then promptly file the original statement
together with any supplemental statement and notification of detention with the
court having probate jurisdiction in the county in which the individual was
taken into custody.The filing of the
statement and notification has the same effect as a petition for commitment
under s. 51.20.

[9]SeeWis. Stat. § 51.15(5), which
states, in pertinent part:“The statement
of emergency detention shall be filed by the officer or other person with the
detention facility at the time of admission, and with the court immediately
thereafter.The filing of the
statement has the same effect as a petition for commitment under s. 51.20….”(Emphasis added.)

[11]Wisconsin Stat. § 51.42 describes
the boards to be established in each county to coordinate delivery of
community-based mental health, drug and alcohol treatment services, while Wis. Stat. § 51.437 describes
similar boards to deliver more particularized services to the developmentally
disabled.

(a) Creation. Except
as provided under s. 46.23 (3) (b), the county board of supervisors of any
county, or the county boards of supervisors of 2 or more contiguous counties,
shall establish a county department of community programs on a single-county or
multicounty basis to administer a community mental health, developmental
disabilities, alcoholism and drug abuse program, make appropriations to operate
the program and authorize the county department of community programs to apply
for grants-in-aid under s. 51.423.The
county department of community programs shall consist of a county community
programs board, a county community programs director and necessary personnel.

(c) In
a county with a population of 500,000 or more, the county board of supervisors
shall integrate day care programs for mentally retarded persons and those programs
for persons with other developmental disabilities into the county developmental
disabilities program.

….

(4m) … (a) Within
the limits of available state and federal funds and of county funds required to
be appropriated to match state funds, establish a county developmental
disabilities services program.Such
services shall be provided either directly or by contract.

(c) Condition
an element of claim or defense.There is no privilege under this section as to communications relevant
to or within the scope of discovery examination of an issue of the physical,
mental or emotional condition of a patient in any proceedings in which the
patient relies upon the condition as an element of the patient’s claim or
defense, or, after the patient’s death, in any proceeding in which any party
relies upon the condition as an element of the party’s claim or defense.

In State
v. Taylor, 142 Wis. 2d 36, 41, 417 N.W.2d 192 (Ct. App. 1987), the
court of appeals concluded, citing sec. 905.04 (4) (c), that by entering a plea
of not guilty by reason of mental disease or defect, a defendant loses the
physician-patient privilege with respect to his past psychiatric treatment
records. The court of appeals also concluded that once the privilege is
removed, the confidentiality of the past physician-patient privilege under sec.
51.30 (4) is also removed.

See
also sec. 51.30 (6) that provides:“Sections 905.03 and 905.04 supersede this section with respect to
communications between physicians and patients….

[17]See
Wisconsin Circuit Court Access (CCAP) records for MilwaukeeCounty, Case
No. 06CF3898.These are public
records of which we may take judicial notice.The parties refer to this plea in their briefs before this court.
Although no reference to the plea of not guilty by reason of mental disease or
defect appears in the record before the trial court, that plea had been entered
before the trial court made its decision.Records of the competency evaluation are part of the record that was
before the trial court.

(b) Access
without informed written consent.Notwithstanding par. (a), treatment records of an individual may be
released without informed written consent in the following circumstances,
except as restricted under par. (c):